[2007] KEHC 2186 (KLR)
The court declined to grant the interlocutory injunction sought by the plaintiffs because both parties claimed irregular allocation of the disputed land, and the truth of the matter could not be determined without discovery and oral evidence. The court found that it was not appropriate to exercise its discretion in...
Source-derived case information.
- Citation
- [2007] KEHC 2186 (KLR)
- Parties
- Plaintiff: Narendra B. Patel & Suryakant B. Patel; Defendant: Lorimar Apartments Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 989 of 2003
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Interlocutory injunction refused; status quo to be maintained pending hearing of the main suit.
- Judges
- JL Osiemo
- Legal Topics
- Interlocutory Injunctions, Status Quo Orders, Land Allocation Disputes, Title Challenges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Narendra B. Patel & Suryakant B. Patel
Plaintiff
Lorimar Apartments Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to an interlocutory injunction restraining the defendant from interfering with the fence or wall on the disputed property.
- 2 Whether the plaintiffs' title to the property is valid or subject to challenge due to alleged misrepresentation.
- 3 Whether the court should preserve the status quo pending the hearing and determination of the main suit.
Ratio Decidendi
The court declined to grant the interlocutory injunction sought by the plaintiffs because both parties claimed irregular allocation of the disputed land, and the truth of the matter could not be determined without discovery and oral evidence. The court found that it was not appropriate to exercise its discretion in favour of the applicant at this stage. Instead, the court ordered that both parties make complete discovery and set the matter down for hearing on a priority basis. To preserve the rights of both parties pending trial, the court ordered that the status quo as of the date of the ruling be maintained until the suit is heard and determined, with liberty to apply if the status quo...
Court Disposition
Interlocutory injunction refused; status quo to be maintained pending hearing of the main suit.
Orders
- Both parties to make complete discovery.
- Parties to take a hearing date on a priority basis for the main suit.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 989 of 2003
NARENDRA B. PATEL & SURYAKANT B. PATEL….………PLAINTIFFS
VERSUS
LORIMAR APARTMENTS LTD…………….……..……..…DEFENDANTS
RULING
By way of this Chamber Summons dated 8th June 2006 and brought under Order XXXIX Rule 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act the Plaintiff seeks injunctive orders to restrain the 2nd Defendants whether by itself, its servants, employees and/or agents from demolishing or in any way whatsoever interfering with the Plaintiff’s fence or any wall thereof erected between the Plaintiff’s property being LR NO. 20285 and the Defendant’s property being LR. NO. 7158/88 and (or trespassing into the Plaintiff’s property being LR. 20285 until the hearing and determination of this suit and/or until further orders of this court.
The application is based on the grounds that the 2nd Defendant has threatened to unlawfully trespass upon the Plaintiff’s property aforesaid and that the wall in question was built with the approval of the 2nd Defendant. The Defendant on being served with this Chamber Summons filed a replying affidavit sworn by Mukosh Vaya in which he avers that the Plaintiffs purported title deed is subject to being challenged since the Plaintiffs had obtained the same through misrepresentation of material facts to the Commissioner of Lands and the City Council of Nairobi; that upon complaining to the Commissioner of Lands and the City Council of Nairobi the allocation of access road to the Plaintiffs was rescinded.
The orders sought by the Plaintiff in the main suit are similar orders to those sought in this Chamber Summons. The Plaintiff claims the Defendants allocation of the suit land was irregular and the Defendant also claims that the Plaintiff was allocated the land irregularly.
Since each claims the allocation to the other was irregular, there is no way the court can determine the dispute conclusively without the benefit of discovery and oral evidence being subjected to cross examination to establish the truth of the matter in dispute.
In the circumstances I am not persuaded to exercise my discretion in favour of the Applicant and grant the orders sought. I order that both parties make complete discovery and take a hearing date in the registry on priority basis for the hearing of the main suit. In the meantime I order that status quo as of now be maintained until the suit is heard and determined. And if the status quo is not distinct, each party be at liberty to apply.
Dated and delivered at Nairobi this 18th day of July 2007.
J.L.A. OSIEMO
JUDGE